INTERNATIONAL THERMAL AND ACOUSTIC CC t/a INTERTHERM
(Hereinafter referred to as “the company”)
Draft 3 22/02/2011 FOR DISCUSSION AND FINALISATION PURPOSES
Standard Terms & Conditions
Unless the context indicates otherwise:
|“Company”||– shall mean:||International Thermal and Acoustic CC t/a Intertherm. Registration number: CK 1997/01385/23|
|“Customer”||– shall mean:||The organization, company, person or body purchasing products from the Company through a Purchase Order|
|“Agreement”||– shall mean:||The organization, company, person or body purchasing products from the Company through a Purchase Order|
|“Delivery Date”||– shall mean:||The date specified in the Purchase Order by which delivery is to be effected. If the Products are to be installed, and/or commissioned by the Company then Delivery Date shall mean the date specified by which such installation and/or commissioning inclusive of any tests or any inspections required, shall have been completed to the satisfaction of the Company.|
|“Delivery”||– shall mean:||The date specified in the Purchase Order by which delivery is to be effected. If the Products are to be installed, and/or commissioned by the Company then Delivery Date shall mean the date specified by which such installation and/or commissioning inclusive of any tests or any inspections required, shall have been completed to the satisfaction of the Company.|
|“Goods/Services”||– shall mean:||The items detailed on the Purchase Order, and shall be inclusive of all work necessary to achieve delivery by the required delivery date. Hereinafter referred to as “Product/s”|
|“Parties”||– shall mean:||Shall be referred to as the Company and the Customer|
|“Product/s”||– shall mean:||The items/services ordered under the Purchase Order|
|“Purchase Order”||– shall mean:||A official company document which shall contain at least the following details:
|“Signed agreement”||– shall mean:||The written agreement between the parties signed by both the Company and the Customer and/or its duly authorized representative. Signature date shall be the date of the last signing of either of the parties|
|“Website”||– shall mean:||The website of the Company being www.intertherm.co.za|
|“Website direction”||– shall mean:||The portion on the Purchase Order to which the customer shall be bound to which directs the customer’s attention to the website of the company which contains standard terms and conditions and it is acknowledged and accepted by the customer that even in the event of this agreement not being signed, by accepting the Purchase Order, the customer agrees to be fully bound to these terms and conditions, irrelevant of the fact that they are not signed by the customer or its duly authorized representative|
Unless the context clearly indicates a contrary intention, any expression which denotes (a) any gender includes the other genders; (b) a natural body includes a body corporate and vice versa; (c) the singular includes the plural and vice versa; (d) headings are for convenience only and are not to be taken into account for the purpose of interpretation.
1. Application of Terms and Conditions:
In the absence of a signed agreement, the standard terms and conditions as set out on the Company’s website that being www.intertherm.co.za shall be of full force and effect and shall be binding upon the Company and the Customer upon the Customer accepting the Purchase Order and such standard terms and conditions shall take precedent over all other terms and conditions submitted by, or included with any quotation from the Customer and accepting that any term and condition appearing on the face of the Purchase Order shall be binding upon the Customer. In the event of there being a signed agreement, then those terms and conditions shall take precedent over any other standard terms and conditions as appears on the Website.
For absolute clarity, in the event of there being no signed agreement, but there is a valid accepted Purchase Order then the Customer agrees to be bound to the standard terms and conditions as appear on the website and by the Customer accepting the Purchase Order acknowledges that it has the capability of viewing the website and the terms and conditions and in actual fact has done so and irrevocably accepts such terms and agrees that they shall be fully binding on them.
No variation from the specifications and/or terms and conditions of the Purchase Order are permitted without the Company’s prior written consent. The Company reserves the right to add to, deduct from, or otherwise alter requirements of the Purchase Order. Any such alterations to the Purchase Order shall be issued as an amendment to the Purchase Order, shall form part of the original Purchase Order and all requirements thereof except as may be altered by the amendment, will apply to such variation. The Customer shall not proceed with any such variation until advised in writing to proceed.
3. Product Specification, Indemnifications and Typographical Errors:
It is accepted and agreed by the Customer that:
(a) The Customer and/or its employees and/or any authorized representative shall not, in any way, manner, means or form have any claim against the Company for any action, act and/or omission of any nature whatsoever.
(b) The Customer further irrevocably indemnifies the Company against any claim for losses and/or damage made by and or occasioned by any third party for arising from this agreement or for any other reason whatsoever.
(c) The Company will not be required to execute an order or compensate the Customer for any reason whatsoever for any error made by the Company in its presentation of the Purchase Order, or for any other reason whatsoever.
(d) The Customer agrees that the Company shall not be liable on any basis whatsoever for any incorrect product specification or typographical errors that may appear on the Purchase order and agrees that the company can amend, if it elects to do so, the Purchase order at its sole discretion.
The products sold by the Company are billed in Rand (Excluding VAT). The price of the products shall be the net price appearing on the Company’s price list, alternatively, on the Purchase Order. If there is a conflict between the two then the Purchase Order will take preference. The Company’s price list will be made available to the Customer from time to time, and may be subject to change, without notice, from time to time. The Company reserves its right to renew its pricing structure in accordance with market, economic and other relevant circumstances. The Company may, at its sole discretion, levy charges in respect of copy documentation requested by the Customer.
The Customer shall be entitled to make payment of the Purchase Order in US Dollars or Euros. In the event of the Company invoicing in US Dollars or Euros then the exchange rate applicable to such Purchase Order shall be the exchange rate applicable as at the date of the Purchase Order.
Payments of amounts as stipulated under paragraph 4 and read with the Purchase Order shall be paid directly, without deductions and/or sett-off, and as per the time frames as stipulated in the Purchase Order or as per the terms and conditions into the banking account as stipulated in paragraph 7 of this agreement.
5. Certificate of balance and interest
The Customer agrees that the amount due and payable to the Company may be determined and proven by a certificate issued and signed by the member of the Company duly authorised to issue such certificate on behalf of the Company. Such certificate shall be binding and shall be prima facie proof of the indebtedness of the Customer.
In the event of any late payments then the Customer agrees that interest shall be levied against the account of which shall be calculated at the legal rate of 15% per month, compounded, from the date of the Purchase Order to date of final payment.
Items are currently delivered to customers both nationally and internationally.
7. Terms of Payment:
Unless otherwise specified in the Purchase Order, all invoices/Purchase order presented at the Customer’s stated address, either faxed or e-mailed through to the Customer at an e-mail address or fax number elected by the Customer, such invoices will become due upon presentation, alternatively, as stipulated in the Purchase Order. All payments shall be punctually paid by the Customer to the Company.
8. Delivery, Passing of Risk and Ownership
(a) Delivery within South Africa: Ownership of the product supplied by the Company, in discharging its obligation in terms of this agreement, and/or in terms of the Purchase Order, shall remain that of the Company and the Company shall at all stages have a lien over the said equipment until such time as the Customer has discharged all its payment obligations in terms of the relevant agreement.
(b) Delivery Internationally: The products ordered by the Customer shall be supplied ex-works and risk in the product shall pass to the Customer on delivery thereof in terms of the relevant principle agreement. The parties agree that the “ex-work” Incoterm as defined by the International Chamber of Commerce in its Incoterms 2000 shall be applicable to the supply of the products by the Company to the Customer. The Customer shall be responsible for all transportation, insurance, freight handling, loading, customs and other costs pertaining to the transportation of the products.
Delivery of the product shall be done strictly in accordance with the Purchase Order requirements. No alternative or substitute products may be delivered without the Company’s written consent.
It is further agreed between the parties and understood by the Customer that the delivery date as defined in this agreement may well vary depending on availability of stock, accessibility to premises of the customer in order for the Company to fulfill its obligations in terms of this agreement, and any other factor which might well reasonably delay the delivery date. If the delivery date is not complied with by the Company, the Customer acknowledges that it shall have no claim of whatsoever nature against the Company.
Unless otherwise specifically stated in the Purchase Order, prices are fixed and free from any and all escalations. However, this paragraph is to be read with paragraph 4 and it is understood between the parties that the Company has the sole reservation and discretion to increase its pricing structure at any time.
10. Foreign Exchange:
Unless otherwise specifically stated in the Purchase Order, variation in foreign exchange rate which affect the Purchase Order value will not be for the Company’s account. The amount stipulated on the Purchase Order will be the amount paid by the Customer irrelevant of the exchange rate.
11. Cession & Assignment
The Customer shall not cede nor assign all or part of the Purchase Order, and/or any part of this agreement and/or the agreement containing the standard terms and conditions on the website without prior written authority from the Company.
12. Stock Availability:
It is acknowledged that the stock on offer and/or as stipulated in the Purchase Order may, in certain instances, be limited. The Company shall take all reasonable efforts to discontinue the offer as soon as stock is not available, however, should items be offered after stocks are sold out, the Company shall only be liable to refund money which it is unable to fulfill orders at the advertised prices.
Should any discrepancies or ambiguousness arise in relation to the goods to be supplied against the Purchase Order, it shall be referred to the Company for resolution thereof. Any failure to agree upon such resolution shall constitute a dispute to be resolved by arbitration on the basis referred to hereunder. The Company shall not be liable for any additional costs resulting from abortive or wasted work arising prior to the discovery of such discrepancies or ambiguity. Â It is further acknowledged by the Customer that in the event of any payment being made against the Purchase Order and the Customer being of the view that the Company has not discharged its obligations in terms of the agreement then, to this extent, the Company shall not be required to reimburse either part or in full the payments received and such payments shall be retained in lieu of potential damages and shall be retained by the Company until such time as the dispute has been, if applicable, through arbitration or otherwise.
14. Quality Control:
In the event that the Customer notifies the company of any defect in the goods/service/item upon arrival at the Customer’s premises, the Company shall be obliged and entitled to take all necessary steps to remedy the defect and the Customer will co-operate with the company to bring the goods/service/items up to specification. In the event of any of the goods/services/items proving faulty or having a latent defect, within a period of 10 (ten) days from the day of receipt at the Customer’s premises, the Company shall replace same or grant an appropriate credit to the Customer at the Company’s sole discretion.
15. Limitation of liability
Neither party shall be liable to the other party in any circumstances for any direct, indirect, special, contingent or consequential loss (including, but without being limited to, loss of use, loss of goodwill, work stoppage, computer or systems failure or malfunctions, loss of data, damage to its reputation, loss of revenue, loss of business or loss of profits) sustained or incurred by the other party.
16. Termination and Breach:
(a) In the event of a party:
(i) Continually failing to comply with any provision of this agreement and persisting in such failure for a period of fourteen days after receipt of a written notice demanding compliance; or
(ii) Being liquidated, whether provisionally or finally or being placed under judicial management or Curatorship; or
(iii) If a Court Judgment is issued against a party for the payment of monies to a claimant, and the party remains in default thereof for a period of 45 days from the date of issue by the Court; or
(iv) Allowing the attachment of any of its assets; or
(v) Entering into a compromise with its creditors;
(b) The other party shall be entitled, without prejudice to any other right it may have in terms of this agreement or in law, to:
(i) Cancel this agreement and claim damages suffered; or
(ii) Claim specific performance of any or all of the terms and conditions of this agreement.
(c) In the event of Either party, for whatever reason, either directly or indirectly, being in breach of any restriction, limitation or duty imposed upon it arising out of this agreement, the remaining party shall notify the defaulting party in writing to remedy such breach/failure, and should the defaulting party fail to do so within 14 days of receipt of such notification, the remaining party shall without prejudice and in addition to any other remedies it may have, be entitled to:
(i) Cancel this agreement, and/or
(ii) Claim specific performance of any or all of the terms and conditions of this agreement; and
(iii) Claim damages suffered arising from the conduct of the defaulting party.
All details of the Purchase Order and the relevant agreement as a whole, shall be considered as confidential, and shall not be imparted to any third party in any form whatsoever without prior written authority of the Company, expecting that any necessary information required by a third party for execution of the Purchase Order may be imparted. Whilst performing duties associated with the Purchase Order, the customer may become privileged to certain information that they would not have been exposed to in normal circumstances. Such information shall remain confidential and shall not be divulged in any way, means or form without the written consent of the Company. Any know-how information or documents supplied at any time by the Company to the Customer shall be treated as confidential and shall not be disclosed by the Customer to any third party.
18. Trade Mark and Intellectual Property
(a) The Company retains all intellectual property in its products, specifications, data, and all other documents prepared by the Company and provided to the Customer in whatever medium and for whatever purpose.
(b) The Company’s trademarks and names shall not be used otherwise than as applied by the Company to the products.
19. Force Majeure (via major)
If either party is prevented or restricted directly or indirectly from carrying out any or all of its obligations under the relevant agreement for any reason beyond the reasonable control of that party (without limiting the generality of the aforegoing due to war, civil commotion, riot, insurrection, strikes, lockouts or industrial action, government or state embargo, fire, explosion, floods, and acts of Gods), the party so effected shall be relieved from its obligations in terms of the agreement, during the period that such events and consequence continue, but only to the extent so prevented and shall not be liable for any delay or failure in performance of any obligations in terms of this Agreement, which the other party may suffer due to or resulting from such delay or failure provided always that written notice between 48 (forty eight) hours of the occurrence constituting force majeure be given for any such inability to perform by the affected party and provided further that the obligations to give such notice shall be suspended to the extent necessitated by the force majeure. Any party evoking force majeure shall use its best endeavor to terminate the circumstances giving rights to force majeure and upon termination of the circumstances giving rise thereto, shall forthwith give notice thereof to the other party. In the even that the force majeure lasts for more than 6 (six) months, the party who has not claimed force majeure may terminate the agreement.
No indulgences by the Company in respect to any part of the Purchase Order shall or shall be deemed to release the Customer from its obligations in terms of the Purchase Order or constitute a waiver of the Company’s rights.
21. Notices & Domicilium
The parties choose as their domicilium citandi et executandi the respective addresses as set out in the Purchase Order, alternatively, as per this agreement, at which addresses all the processes and notices arising out of or in connection with the relevant agreement, its breach or termination may validly be served upon or delivered to the parties. The Customer undertakes to inform the Company in writing within 7 days of any change of address and failure to do so will constitute a material breach of this agreement. Any notice shall be deemed duly accepted by the Customer (i) within 5 days of mailing by prepaid registered mail to any of the Customers postal addresses or to the personal address given and proof of the same attached hereto; or (ii) within 24 hours of being faxed to any of the Customer’s fax numbers; or (iii) on being delivered by hand to the Customer; or (iv) within 48 hours if sent by overnight courier.
It is further acknowledged and agreed by the Customer that the Customer will be bound in the event of a formal agreement not been signed bound to the terms and conditions available on the website. In such instances the Customer agrees to their domiciliumaddress as being the address where the Invoices are sent as per the Purchase order, alternatively, its principle place of business,further alternatively, and if applicable, its registered offices.
The Customer and/or Surety elects its domicilium citandi et executandi address in terms of this written agreement:
22. Warranty of Authority
Each party warrants to the other party that it has the power, authority and legal rights to sign and perform this agreement and that this agreement has been duly authorized by all necessary actions of its directors and members, to the extent applicable and constitutes a valid and binding obligations in accordance with the relevant agreement.
Each phrase, sentence, paragraph and clause in this agreement is severable, the one from the other, notwithstanding the manner in which they may be linked together or grouped grammatically an if in terms of any law, judgment or order any phrase, sentence, paragraph or clause is found to be defective or unenforceable for any reason, the remaining phrases, sentences, paragraphs and clauses as the case may be, shall nevertheless be and continue to be of full force and effect.
The Customer irrevocably undertakes to indemnify and hold the Company harmless against any losses, including consequential or indirect loss, incurred by it or claims against it by any third party, including but not limited to the Customer’s employees, representatives, customers, agents or consumers, in respect of damage to property, or body injury, or death, arising out of any negligent or willful act or omission of the Customer and/or its employees.
25. Ethical Conduct
The parties are required to act ethically and to comply with all local laws and regulations at all times. By the same token the parties requires that all of its employees do likewise.
The signatory on behalf of the Customer hereby binds him/herself to an unlimited amount of surety and co principle debtor with the Customer for all debts and obligations of the Customer to the Company. The surety irrevocably waives any right to rely on any defenses of or based on waiver, estoppel or prejudice to the surety.
In the event of there be no formal agreement signed then the signatory to the Purchase Order shall and agrees to be bound as surety and co-principal debtor as aforementioned.
The Surety hereby consents to its domicilium citandi et executandi address being the address as listed in paragraph 21.
27. Dispute Resolution and Arbitration:
(a) Should any dispute (other than a dispute in respect of which urgent relief may be obtained from a court of competent jurisdiction) arise between The Company and the Customer, in the widest sense, in connection with:
(i) the formation or existence of;
(ii) the carrying into effect of;
(iii) the interpretation or application of the provisions of;
(iv) the parties’ respective rights and obligations in terms of or arising out of;
(v) the validity, enforcement, rectification, termination or cancellation, whether in whole or in part of the Agreement;
(b) The dispute shall, unless resolved amongst the parties to the dispute within 10 (ten) days of calling for resolution, and if not resolved within those 10 (ten) days thereafter, be referred to and be determined by arbitration in terms of this clause, provided that a party to the dispute has demanded the arbitration by written notice to the other party/s.
(c) The arbitration shall be:
(i) at Johannesburg;
(ii) with only the representatives and legal representatives of the parties to the dispute present thereto;
(iii) if required, expert evidence can be called by the party.
(d) Subject to any other provision in this agreement providing for dispute resolution, any dispute, controversy or claim arising there from, or the breach, termination or validity thereof, shall be referred for arbitration to the Arbitration Foundation of South Africa (AFSA) in terms of AFSA’s arbitration rules for the time being enforced.
(e) Without derogating from the generality of clause 21.4 above, should any dispute arise in future between the parties in connection with the agreement, specifically, those as mentioned in paragraph 21, such dispute shall for purposes of this agreement be deemed to be a dispute as provided for in clause 21 and shall be dealt with in accordance with clause 21.
(f) This clause 21 shall constitute each party’s irrevocable consent to the arbitration proceedings and no party shall be entitled to withdraw from such arbitration proceedings or to claim that it is not bound by this clause.
(g) Each of the parties hereby irrevocably agrees that the decision of the arbitrator in the arbitration proceedings.
(i) Shall be final and binding on each of them;
(ii) Will be carried into effect; and
(iii) Be made an order of any Court to whose jurisdiction the parties are subject to.
(h) Notwithstanding the aforementioned, nothing in this clause 21 shall be construed as precluding any party from applying to Court for a temporary interdict or other relief on an urgent nature, pending the decision of the award of the arbitrator in terms of clause 21.
(i) Notwithstanding the aforesaid it is specifically agreed between the parties that the company can, in its sole discretion, not decide to proceed with arbitration but rather proceed with an application and/or a summons through any competent Court having jurisdiction. This is a clause for the benefit of the company only. In the event of the company electing to exercise the contents of this paragraph then the customer agrees to the jurisdiction of the Magistrate’s Court having jurisdiction to entertain the claim notwithstanding that the quantum may exceed the jurisdiction of the Magistrate’s Court. It is further acknowledged and agreed by the Customer that in the event of there being any legal action either by means of a dispute resolution, arbitration or in the event of the Company electing to proceed with a summons or application through any High Court or Magistrate’s Court, that the Customer acknowledges and agrees that the Laws of South Africa will apply and that such summons and/or application shall be launched through a competent Court having jurisdiction within the Republic of South Africa and such dispute/litigation shall be held within the Republic of South Africa.
(a) The Customer hereby consents to the storage and use by the Company of the personal information that it has provided to the Company for establishing its credit rating and to the Company disclosing such information to credit control companies, banks and other institutions involved in rating credit and to any necessary party that the Company may supply the information to for the recovery of any unpaid invoice. The Customer agrees that the Company will not be held liable for the bona fide disclosure of any of this information to such a third party and that no further specific consent need be obtained for the transfer of such information to a specific third party.
(b) The rule of construction that this Agreement shall be interpreted against the Party responsible for the drafting of this Agreement, shall not apply.
29. Applicable Law:
The agreement resulting from acceptance of the Purchase Order shall be governed and construed in accordance with the Laws of the Republic of South Africa.
Upon acceptance of or complete or partial performance under, the Purchase Order, the Customer warrants that it has read, understands and is in, and will remain in compliance with all the requirements of the terms and conditions herein set out.
I the undersigned:
- certify that I am duly authorised to sign this agreement;
- certify that the above information is true and correct;
- certify that I have read and accept the terms and conditions as set out in the Standard Terms and Conditions as contained herein and agree to be bound thereby;